Hundred and Twenty-seventh Session
Rome, 22 - 27 November 2004
REPORT OF THE SEVENTY-SEVENTH SESSION OF THE COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS (CCLM)
Rome, 7-8 October 2004
II. LEGAL STATUS OF BODIES ESTABLISHED UNDER ARTICLE XIV OF THE FAO CONSTITUTION
III. PROPOSAL FOR THE ESTABLISHMENT OF A SOUTH WEST INDIAN OCEAN FISHERIES COMMISSION (SWIOFC) UNDER ARTICLE VI OF THE FAO CONSTITUTION
IV. SEATING ARRANGEMENTS FOR THE EUROPEAN COMMUNITY IN MEETINGS OF THE CODEX ALIMENTARIUS COMMISSION AND ITS SUBSIDIARY BODIES
V. CORRECTION OF ERRORS IN THE BASIC TEXTS IN THE DIFFERENT LANGUAGES
VI. INFORMATION ON DEVELOPMENTS IN THE UN SYSTEM REGARDING REGISTERED PARTNERSHIPS AND SAME-SEX MARRIAGES
APPENDIX I - DRAFT RESOLUTION AND STATUTES OF THE SOUTH WEST INDIAN OCEAN FISHERIES COMMISSION
1. The Seventy-seventh Session of the Committee on Constitutional and Legal Matters (CCLM) was held on 7-8 October 2004. All the Members of the Committee, with the exception of Iraq, as listed below, were represented:
Canada, Czech Republic, France, Guatemala, Niger and Philippines.
2. The Committee reviewed document CCLM 77/2 entitled “Legal status of bodies established under Article XIV of the FAO Constitution” referred to it under Rule XXXIV, paragraph 4 of the General Rules of the Organization. The CCLM noted, in this regard, the views of the Indian Ocean Tuna Commission (IOTC), at its Eighth Session, in December 2003, that the relationship between IOTC and FAO should be clarified, as well as the fact that, on a few past occasions, the CCLM, the Council and the Conference had reviewed Part R of the Basic Texts of FAO containing “Principles and procedures which should govern conventions and agreements concluded under Articles XIV and XV of the Constitution and commissions and committees established under Article VI of the Constitution”, referred to in this report as “the Principles”.
3. Prior to dealing with the questions raised, the CCLM examined the general legal framework applicable to conventions and agreements under Article XIV of the FAO Constitution, the background thereto and a number of pertinent legal considerations. The Committee recognized that, as recalled by the Conference, at its Ninth Session in 1957, the express purpose of conventions and agreements under Article XIV was to create financial or other obligations extending beyond those already assumed under the Constitution of FAO. Depending on the particular situation of each convention or agreement, this implied that the bodies which they established should enjoy autonomy on functional matters within the purview of those instruments. In the same vein, in order to carry out their duties, the secretaries of the bodies established by those instruments should enjoy as much autonomy as legally compatible with that framework.
4. The CCLM noted, at the same time, that such bodies were placed and operated under the institutional framework of FAO. Their constituent instruments were approved by the Conference or the Council, in accordance with strict procedural requirements, and they had close links with FAO. Membership was open to Members of FAO and special procedures applied to membership of other countries. These bodies may adopt and amend their rules of procedure and financial regulations, but such rules or regulations, or amendments thereto, must be consistent with the relevant basic texts of FAO. All contributions to their budgets were managed by the Organization subject to the internal and external oversight mechanisms of FAO. The constituent instruments of bodies under Article XIV of the Constitution did not entrust them with legal personality, i.e. capacity to hold rights and obligations of their own, and, therefore, they have to act through FAO or drawing on the legal capacity of FAO. The secretaries of those bodies were officials of FAO, appointed by the Director-General and subject to the FAO Staff Regulations and Rules, as well as to the disciplinary authority of the Director-General. Any grievances which they may allege in connection with their terms of employment are to be referred to relevant means of adjudication of disputes, where FAO is the respondent party and the Director-General its legal representative. Similar considerations applied to any arbitration proceedings involving the bodies in question.
5. The CCLM was of the view that the questions raised had to be dealt with in light of the above and in such a way as to reconcile, in a suitable manner, the requirements of functional autonomy of such bodies and the fact that they are placed and operate under the framework of FAO. The CCLM pointed out that the questions concerned a number of conventions or agreements concluded under Article XIV of the Constitution.
6. The CCLM was of the view that a situation where bodies under Article XIV of the Constitution would enter into contracts or agreements, other than informal working arrangements, directly and in their own right, without prior review by FAO and without any reference to their status as bodies established and functioning under the framework of FAO, would be incompatible with that status. The CCLM noted that this could, on occasion, lead to the acceptance by those bodies of commitments involving implications for FAO, as a whole, and its membership at large.
7. The CCLM recommended that a procedure for the conclusion of agreements, other than informal working arrangements, be followed in future. Such agreements should be reported to the Organization prior to conclusion, with a view to ascertaining any possible policy, programme or financial implications for the Organization, in keeping with the spirit of Part R of the Basic Texts. The secretaries could be authorized to sign the agreements, which should make appropriate reference to the status of the bodies under Article XIV of the Constitution, as required inter alia under paragraph 5 of the Principles. The CCLM noted that, in reviewing any proposed agreements, FAO would take account of the functional requirements of the bodies concerned and would not interfere with their substance, except in the event that they should have policy, programme or financial implications for FAO.
8. The CCLM recommended to the Council that the Organization monitor the implementation of this recommendation, with a view to assessing whether amendments to Part R of the Basic Texts were required.
9. The CCLM examined the particular context in which the question had been raised and noted that it concerned the interpretation of the provisions paragraph 32 (iii) of the Principles of Part R of the Basic Texts and the provisions of a number of constituent agreements whereby the secretaries of some bodies under Article XIV are appointed by the Director-General with the approval of the concerned bodies.
10. The CCLM recognized the need to harmonize the requirements inherent in the status of the secretaries of functional autonomy and technical accountability towards the concerned bodies and of administrative accountability towards the Organization, as officials of FAO. The CCLM was of the view that the selection and appointment process could not be seen as one including two parallel and independent segments consisting, on the one hand, in the identification of a candidate by the body under Article XIV of the Constitution and, on the other hand, his or her appointment by the Director-General who would be required merely to appoint the selected candidate, without any form of involvement in the process of identification of qualified candidates. The CCLM was of the opinion that this would not be consistent with the applicable legal framework, including the constitutional duties of the Director-General in the selection and appointment of staff.
11. The CCLM was of the opinion that the procedure adopted recently by the General Fisheries Commission for the Mediterranean, at its Extraordinary Session held in Malta from 19 to 23 July 2004, provided a legally acceptable solution for the appointment of secretaries of bodies under Article XIV, having autonomous budgets, in accordance with paragraph 32 (iii) of the Principles.
12. The CCLM recommended to the Council that IOTC be invited to amend its Rules of Procedure, as far as the selection and appointment procedure of its secretary is concerned, along the lines of the procedure approved by the GFCM, on the understanding that such procedure would apply only in future.
13. The CCLM expressed the view that any documents or decisions having policy, programme or financial implications for FAO must be reported to the Organization and that the Organization should be given a timely opportunity to express its views. The CCLM noted that this requirement was not only inherent in the very status of bodies under Article XIV of the Constitution, but was also explicitly reflected in a number of provisions of the Principles, with particular reference to paragraph 30.
14. In response to a question by a Member, the Legal Counsel clarified that the above requirement was without prejudice to the functional autonomy of bodies under Article XIV on technical matters and that, from a practical point of view, there was a need for the concerned secretaries to assess, in cooperation with the competent FAO unit, each particular situation in light of this requirement. The Legal Counsel also clarified, in response to a question by a Member, that, should any document or decision having policy, programme or financial implications for the Organization be prepared during sessions of the bodies concerned, the representative of the Director-General should be allowed to present the position of the Organization.
15. The CCLM agreed with the above, recommended to the Council that the position be restated and that the matter be kept under review in order to assess whether any amendments to Part R of the Basic Texts were needed.
16. The CCLM recalled that the status of Member Organizations in bodies under Article XIV of the Constitution - except for special situations where, in view of its full competence, the Member Organization was a Member of a body to the exclusion of its Members - was the same as in FAO. Accordingly, membership was based on the fundamental principle of the alternative exercise of membership rights of a Member Organization and its Members in areas of their respective competence. The Legal Counsel clarified that this was strictly in accordance with Article II, paragraph 8 of the Constitution and established practice.
17. The CCLM also recalled that in cases where a Member Organization participated in a particular body on the basis of the principle of the alternative exercise of membership rights it may not hold office. The CCLM recommended that this be duly reflected in the Rules of Procedure of relevant bodies established under Article XIV of the Constitution.
18. The CCLM considered document CCLM 77/3 entitled “Proposal for the establishment of a South West Indian Ocean Fisheries Commission (SWIOFC) under Article VI of the FAO Constitution”. The Committee noted that, in 1999, the FAO Council had abolished the former Indian Ocean Fishery Commission and all its subsidiary bodies. On that occasion, the Council authorized the Director-General to convene ad hoc meetings of the members of the former Committee for the Development and Management of Fisheries in the Southwest Indian Ocean, as required, in order to complete the process of establishment of a new commission and, pending that, to take such interim action as might be required regarding the management of fisheries resources in that area.
19. The CCLM noted that a series of meetings were held during the period 2000/2003 with a view to establishing a new fishery commission. Eventually, a meeting convened in January 2004, agreed that there should be two separate bodies, one for the management and development of coastal water fisheries, and another one for the management of high seas fisheries. As regards the fisheries body for coastal waters, the meeting agreed that it should be more appropriately established under Article VI of the FAO Constitution, insofar as it would perform advisory functions, and would not have authority to adopt management measures binding upon its Members, nor have an autonomous budget financed by mandatory contributions, bearing in mind the status of its Members as least developed countries. Subsequently, at a meeting held in July 2004, agreement was reached on a draft Council Resolution and the Statutes of the proposed South West Indian Ocean Fisheries Commission.
20. The CCLM reviewed the draft Council Resolution and the Statutes of the South West Indian Ocean Fisheries Commission and, subject to a few changes which it made to the French version, found them to be in order from a legal point of view. The CCLM forwarded the draft Resolution and Statutes to the Council, for adoption, at its Hundred and Twenty-seventh Session in November 2004, as contained in APPENDIX I to this report.
21. The Committee examined document CCLM 77/4 entitled “Seating arrangements for the European Community in meetings of the Codex Alimentarius Commission and its subsidiary bodies”, prepared in connection with the request by the European Community to be seated, in meetings of the FAO/WHO Codex Alimentarius Commission and its subsidiary bodies, next to the delegation of the Member holding the rotating Presidency of the Council of Ministers of the European Community.
22. The CCLM recalled its earlier request to be kept informed of any relevant developments regarding the status of the Community within the Codex Alimentarius Commission. The Committee also recalled that, in September 2002, it had reviewed a set of amendments to the Rules of Procedure regarding membership of regional economic integration organizations in the Codex Alimentarius Commission. At that time, the CCLM considered that the amendments were compatible with the constitutional provisions governing the status of Member Organizations within FAO and that some particular arrangements proposed at the time were justified in light of the technical work performed within the Commission. Eventually, the set of amendments were adopted, by a nominal vote, at the Twenty-sixth Session of the Codex Alimentarius Commission in June-July 2003. Subsequently, the Member holding the Presidency of the Council of Ministers of the European Community notified the Director-General of its intention to be considered a Member of the Codex Commission, in accordance with Article 2 of the Statutes of the Commission.
23. The CCLM was informed that, since 1991, when the European Community became a Member of FAO, its delegation has been seated in alphabetical order among all the delegations to FAO meetings. This practice has been followed in a strict and consistent manner since then, except in the particular case of the FAO Council. In this case, in line with a review of the matter by the CCLM in 1993, the delegation of the European Community sits immediately after all Nations, Members of the Council, in the 50th seat in the same area of the Members, as this was felt to be more consistent with the sui generis nature of the form of membership of the European Community in FAO and the constitutional provisions related thereto.
24. The CCLM considered that the request by the European Community to be seated next to the delegation of the country holding the rotating presidency in meetings of the Codex Alimentarius Commission did not appear to raise legal difficulties, in light of a number of considerations. This was so, first of all, in view of the fact that the form of membership of the European Community in FAO is a sui generis one. In addition, the Codex Alimentarius Commission has a special status given the highly technical and specialized nature of the work carried out within the Commission, where the proposed arrangements might allow for better coordination of the positions of the European Community and its Members. Furthermore, seating arrangements in the organizations of the United Nations system are well established but special procedures have been occasionally devised to take into account particular situations. The CCLM noted that representatives of the General Secretariat of the Council of Ministers would also be able to participate in meetings of Codex either as members of the delegations of the European Community, or of the Member holding the Presidency, but this was an internal matter.
25. Having regard to the above, the CCLM agreed that there would be no legal impediments to special seating arrangements for the European Community in meetings of the Codex Alimentarius Commission and its subsidiary bodies, whereby the delegation of the European Community would sit next to the delegation of the country holding the rotating presidency of the Community. The CCLM emphasized that such arrangements must be seen in light of the special nature of the Codex Alimentarius Commission and its work and would not set a precedent in respect of the practice followed by the Organization since 1991, neither in the Council nor in any other bodies or meetings of the Organization.
26. The CCLM examined document CCLM 77/5 entitled “Correction of errors in the basic texts in the different languages”. The Committee considered that the three errors in the General Rules of the Organization in the different languages which were brought to its attention were relatively minor ones and did not materially affect the intent or legal effect of the Rules in question. It noted that, being the five versions in the different languages equally authoritative, such errors demonstrate a departure in one of the languages from the other languages and, consequently, need to be corrected so as to harmonize all five versions.
27. The Committee recommended that the Council approve the following corrections:
- Spanish version of Rule XXXVI. “Appointment of the Director-General”, of the General Rules of the Organization. In paragraph 1(a), the English version refers to “…by the date set by the Council”, and the French version mentions “…dans les délais fixés par le Conseil”, whereas the Spanish version mistakenly refers to “…en la fecha fijada por el Consejo”. The correct representation of the Rule in Spanish should read “…en el plazo fijado por el Consejo”. The Arabic and Chinese versions are consistent with the English and French versions as described here.
- Arabic version of the same Rule XXXVI of the General Rules. In paragraph 1(a) the English version refers to "such date ... shall be not later than 30 days before...", the French version contains the phrase “le délai ainsi fixé … est d'au moins 30 jours avant la session du Conseil”, and the Spanish version states “la fecha fijada … debe ser 30 días antes por lo menos del período de sesiones del Consejo”. However, the Arabic version mistakenly mentions that such period shall be not less than 30 days before such date. The correct representation of the rule in Arabic should read
"ينبغى ألا يتجاوز الموعد المحدد 30 يوما قبل...." .
The Chinese version is consistent with the English, French and Spanish versions as described here.
- French version of Rule XLVIII, “Suspension and amendment of Rules”. In the last sentence of paragraph 2 the English version refers to “..an appropriate committee”, and the Spanish version correctly mentions “..comité corrispondiente”. However, the French version erroneously refers to “..un comité ad hoc” and this should read “..un comité approprié”. The Arabic and Chinese versions are consistent with the English and Spanish versions as described here.
28. The CCLM recalled that this issue was reviewed at its Seventy-fifth Session in October 2003. The Committee then took note that the issue was under active consideration in the United Nations system and recommended that the Organization follow closely the discussions within the United Nations system with a view to reaching a common position in this regard. The Committee further recalled that the Council, at its Hundred and Twenty-fifth Session in November 2003, supported the CCLM recommendation.
29. The Committee was informed of some developments that took place in the United Nations since October 2003. It was informed, in particular, on the issuance of the following four documents regarding the family status for purposes of entitlements.
- Secretary-General’s bulletin ST/SGB/2004/4, entitled “Family status for purposes of United Nations entitlements”, dated 20 January 2004 and entered into forced on 1 February 2004.
- UN General Assembly Resolution 58/285, entitled “Human resources management”, adopted on 8 April 2004.
- Judgment No 1183 of the Administrative Tribunal of the United Nations (case No. 1276 in re Adrian), issued on 23 July 2004, and published on 30 September 2004, and
- Secretary-General’s bulletin ST/SGB/2004/13, entitled “Family status for purposes of United Nations entitlements”, dated 24 September 2004 and entered into force on 1 October 2004.
30. The Committee thanked the Secretariat for the information received and took note that some of the documents were issued very recently and therefore no translations were available. The Committee requested the Secretariat to prepare a comprehensive document containing this and other appropriate information so that the Members of the Committee could consult with other FAO Members with a view to discuss the issue and prepare a proposal at the next spring session of the CCLM, thus allowing the Organization and its Members to take an active approach on the issue at the subsequent session of the Council.
NOTING the wishes expressed to the FAO Council, at its One Hundred and Sixteenth Session in June 1999, by the former members of the Committee for the Development and Management of Fisheries Resources in the South West Indian Ocean, i.e. Comoros, France, Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia and Tanzania, for the establishment of a regional organization to promote the sustainable development, conservation, rational management and best utilization of fisheries resources in the region with special emphasis on fisheries targeted at non-tuna species;
TAKING INTO CONSIDERATION that the coastal States have established areas of national jurisdiction in accordance with the United Nations Convention on the Law of the Sea of 10 December 1982, and general principles of international law, in the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing the living marine resources in those areas;
NOTING the objectives and purposes stated in Chapter 17 of Agenda 21 adopted by the United Nations Conference on Environment and Development in 1992;
RECOGNIZING the relevant provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 and taking into account the Code of Conduct for Responsible Fisheries, 1995;
RECOGNIZING FURTHER the economic and geographical considerations and the special requirements of developing States, including small-island developing States, and their coastal communities, for equitable benefit from living marine resources;
RECOGNIZING FURTHERMORE that the coastal States in the region face common or similar problems in the development and proper utilization of the fisheries resources in their coastal waters, and need a mechanism for international cooperation in facing these common or similar problems, which would be furthered by the establishment of an advisory commission on fisheries management and development;
HEREBY ESTABLISHES under Article VI.1 of the Constitution of the Organization a fisheries advisory commission, to be known as the South West Indian Ocean Fisheries Commission, the statutes of which shall be as follows:
1. Area of Competence
The area of competence of the Commission shall be all the waters of the South West Indian Ocean within the national jurisdiction of coastal States within the area of competence, being all waters of the Indian Ocean bounded by a line drawn as follows: from a point on the high water mark on the East African coast at latitude 10° 00 N, thence due east along this parallel to the longitude 65°00 E, thence due south along this meridian to the equator, thence due east along this parallel to the longitude 80° 00 E, thence due south along this meridian to a parallel 45° 00 S, thence due west along this parallel to the longitude 30° 00 E, thence due north along this meridian to the coast of the African Continent, as shown in the map in the Annex to these Statutes.
The Commission shall cover all living marine resources, without prejudice to the management responsibilities and authority of other competent fisheries and other living marine resources management organizations or arrangements in the area.
The Commission shall be composed of such Members and Associate Members of the Organization that are coastal States, whose territories are situated wholly or partly within the area of the Commission, and that notify in writing to the Director-General their interest in becoming a member of the Commission.
4. Objectives and functions of the Commission
Without prejudice to the sovereign rights of coastal States, the Commission shall promote the sustainable utilization of the living marine resources of the area of the Commission, by the proper management and development of the living marine resources, and address common problems of fisheries management and development faced by the Members of the Commission. To this end, the Commission shall have the following functions and responsibilities:
5. General Principles
The Commission shall have due regard for and promote the application of the provisions of the FAO Code of Conduct on Responsible Fisheries, including the precautionary approach and the ecosystem approach to fisheries management.
The Commission shall submit to the Director-General reports on its activities and recommendations at such appropriate intervals as to enable the Director-General to take them into consideration when preparing the draft Programme of Work and Budget of the Organization and other submissions to the Conference, Council or Committees of the Council. The Director-General shall bring to the attention of the Conference through the Council recommendations adopted by the Commission which have policy implications or which affect the programme or finances of the Organization. Copies of each report of the Commission shall be circulated to Members of the Commission and to other Member Nations and Associate Members of the Organization and international organizations for their information, as soon as they become available.
9. Rules of Procedure
The Commission may adopt and amend its own rules of procedure which shall be in conformity with the Constitution and General Rules of the Organization and with the Statement of Principles Governing Commissions and Committees adopted by the Conference. The rules of procedure and amendments thereto shall come into force upon approval by the Director-General.
10. Co-operation with any agreement or arrangement for the management and conservation of the high seas fisheries resources of the Southern Indian Ocean
The Commission, acting through the Director-General, shall establish close working relations with any agreement or arrangement for the management and conservation of the high seas fisheries resources of the Southern Indian Ocean. Such working relations shall, in particular: